Jason Halpern v. Gary Tharaldson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON HALPERN,
Plaintiff-Appellant,
v.
GARY THARALDSON,
Defendant-Appellee.
No. 17-15722
D.C. No.
2:15-cv-02037-JCM-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted October 17, 2018
San Francisco, California
Before: HAWKINS and HURWITZ, Circuit Judges, and EATON,** Judge.
In this contract action, Jason Halpern appeals from a grant of summary
judgment in favor of Gary Tharaldson on Halpern’s anticipatory repudiation claim.
FILED
OCT 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.

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We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Glenn v. Wach.
Cty., 673 F.3d 864, 870 (9th Cir. 2011), and affirm.
Halpern had the option, upon payment of a specified sum of money, to enter a
joint venture with Tharaldson. It is undisputed, however, that Halpern never exercised
his option or tendered any payment thereunder. Accordingly, he failed to satisfy the
condition precedent to his participating in a joint venture, and thus, under the facts of
this case, the district court did not err in granting Tharaldson’s motion for summary
judgment. See 135 E. 57th St. LLC v. Daffy’s Inc., 934 N.Y.S.2d 112, 115 (N.Y. App.
Div. 2011) (option itself does not create interest in subject of option contract; no rights
accrue until option is exercised).
Tharaldson’s motion to strike (Dkt. #40) is denied as moot.
AFFIRMED.
2

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